FCC Order scolds Comcast for changing story on P2P blocking

"Surrender, Comcast!" declares the FCC in its Order on P2P blocking. The …

Comcast has 30 days to disclose the details of its "unreasonable network management practices" to the Federal Communications Commission, the agency warned Wednesday morning as it released its full, 67-page Order. As FCC Chair Kevin Martin said it would, the Commission's Order rejects the ISP giant's insistence that its handling of peer-to-peer applications was necessary. "We conclude that the company's discriminatory and arbitrary practice unduly squelches the dynamic benefits of an open and accessible Internet," the agency declares.

In addition, the company's "failure" to publicly reveal its true practices has "compounded the harm," the Commission says. Beyond the 30-day deadline, Comcast must send the FCC a plan explaining how it will mend its ways by the end of the year, and do so by then. It must also disclose what the company's new network management system will look like.

Today's Order is the follow-up document to the FCC's three-to-two decision against Comcast, announced on August 1. Although the Commission clearly throws the book at Comcast regarding P2P throttling, and warns the company that noncompliance will have legal consequences, the agency issues no fine against the ISP. And at least one public interest group says the FCC has given the company too much time to change.

But there is a radical aspect to this document, which aligns the Republican-led Commission with the net neutrality movement.

"We invite Free Press [a complainant in the case] and other members of the public to keep a watchful eye on Comcast as it carries out this relief," the Commissionconcludes. "Using the information provided by Comcast, pursuant to this Order, as well as information submitted by the public, we will closely monitor the company's network management practices."

History of denial

The FCC's Order summarily rejects Comcast's version of the last year of this controversy, particularly its insistence that at present the ISP only interferes with peer-to-peer uploads during periods of heavy traffic. Comcast repeatedly "changed its story" regarding its practices as the volume of complaints rose through last fall, the Commission charges.

First its spokesperson insisted that the company does not "throttle any traffic," the FCC says. Then, when an Associated Press study concluded that Comcast "actively interferes" with BitTorrent applications, the ISP insisted that it only inserts RST [reset] packets into P2P streams "during periods of heavy traffic." But when consumers sent the FCC data reporting P2P interference through long periods of time, Comcast acknowledged that "current P2P management is triggered... regardless of the level of overall network congestion... and regardless of the time of day."

We can stop this

The FCC Order also asserts that the agency has the authority to take these actions against Comcast. It invokes its 2005 Internet Policy Statement as a set of instructions to Internet access service providers, produced by the Commission as directed by Congress. The statement declares that consumers are "entitled to run applications and use services of their choice." The document also warns ISPs that should the FCC identify violations of this principle, the agency "will not hesitate to take action to address their conduct."

The FCC rejects Comcast's insistence that it does not have the authority to take these steps. The Commission notes that while the Supreme Court's Brand X decision classified cable ISPs as "information services" rather than "telecommunications services," it added that the FCC "has jurisdiction to impose additional regulatory obligations" on ISPs via its interstate commerce powers.

In addition, the agency argues that the Telecommunications Act of 1996 requires the FCC to promote competition in telecommunications and broadcasting. Today's Order doesn't come right out and charge that Comcast, a cable video provider, sought to block P2P use to squelch competitors. But the document rather strongly implies it, and insists that the Commission has a statutory duty to combat such behavior. "If cable companies such as Comcast are barred from inhibiting consumer access to high-definition on-line video content," the FCC says, "consumers with cable modem service will have available a source of video programming (much of it free) that could rapidly become an alternative to cable television."

Trust but verify

Today's decision offers few lines of sympathy for Comcast. It does acknowledge that the company has promised to set up a "protocol agnostic" ISP system by the end of the year (Ars guesses that the agnosticism comes from a telecom industry-wide allergy to the word "neutral"). Beyond that, the document invokes Ronald Reagan's famous dictum: "trust but verify." Comcast must:

Reveal the "precise contours" of its network management practices, including the types of equipment used, when they came into use, how they were configured, and where they have been deployed.

Come up with a compliance plan complete with benchmarks that explains how Comcast will move "from discriminatory to nondiscriminatory network management practices by the end of the year."

Publicly disclose the details of its new practices, "including the thresholds that will trigger any limits on customers' access to bandwidth."

If Comcast does not comply with these three requirements, the company will face a temporary injunction and then a permanent cease-and-desist order from the FCC. "Our overriding aim here is to end Comcast's use of unreasonable network practices," the Order declares, "and our remedy sends the unmistakable message that Comcast's conduct must stop."

Reactions

It is widely expected that Comcast will challenge this decision in court, but the company is being circumspect today with the press. "As you can imagine, we'll need to review the order," Comcast spokesperson Charlie Douglas told Ars, "so all we can say right now is 'We are examining the order and evaluating our options'."

Needless to say, Free Press and co-complainant Public Knowledge are quite happy about the decision. "This clear legal precedent signals that the future of the Net Neutrality debate will be over how, not whether, to protect users' right to unfettered Internet access," Ben Scott, policy director of Free Press, declared.

Harold Feld of the Media Access Project also praised the move, but told Ars that he finds "one flaw" in the decision: giving Comcast a month to come up with a compliance plan, followed by a year-end deadline to "stop blocking its own customers."

Further reading

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.